- (1.) This order shall dispose of a bunch of 85 appeals bearing ITA Nos. 200, 201, 232 to 255, 271 to 273, 283 to 298, 303 to 308, 310 to 316, 332 to 334, 356 to 358 and 361 of 2013, 10 to 16, 25, 26, 73, 74, 90, 110, 136, 191, 192, 253, 254, 278 and 398 of 2014, as learned counsel for the parties are agreed that common substantial questions of law are involved therein in all these appeals. However, the facts are being extracted from ITA No.200 of 2013.
(2.) ITA No.200 of 2013 has been preferred by the appellantassessee under Section 260A of the Income Tax Act, 1961 (in short, "the Act") against the order dated 29.7.2013 passed under Section 254(1) of the Act by the Income Tax Appellate Tribunal, Chandigarh 'B' Bench, Chandigarh (in short, "the Tribunal') in ITA No.448/Chd/2011 for the assessment year 2007-08. On 30.5.2014, these appeals were admitted which raise the following substantial questions of law:- i) "Whether the transactions in hand envisage a "transfer" exigible to tax by reference to Section 2(47)(v) of the Income Tax Act, 1961 read with Section 53-A of the Transfer of Property Act, 1882? ii) Whether the Income Tax Appellate Tribunal, has ignored rights emanating from the JDA, legal effect of non registration of JDA, its alleged repudiation etc.? iii) Whether "possession" as envisaged by Section 2(47)(v) and Section 53-A of the Transfer of Property Act, 1882 was delivered, and if so, its nature and legal effect? iv) Whether there was any default on the part of the developers, and if so, its effect on the transactions and on exigibility to tax? v) Whether amount yet to be received can be taxed on an hypothetical assumption arising from the amount to be received?"
(3.) A few facts relevant for the decision of the controversy involved as narrated in ITA No.200 of 2013 may be noticed. The appellantassessee is an individual and one of the members of the Punjabi Cooperative Housing Building Society Limited (hereinafter referred to as "the Society"). The Society consisting of 95 members is owner of 21.2 acres of land in Village Kansal. It had allotted plots measuring 500 square yards to its 65 members, 1000 square yards to its 30 members and four plots of 500 square yards each were retained by it. It entered into a tripartite Joint Development Agreement dated 25.2.2007 (in short, "JDA") with Hash Builders Private Limited, Chandigarh (for brevity "HASH") and Tata Housing Development Company Limited, Mumbai (THDC). Under the JDA, it was agreed that HASH and THDC ("the developers') shall undertake development of 21.2 acres of land owned and registered in the name of the society in respect of which it would give development rights in lieu of consideration. The agreed consideration was to be disbursed by THDC through Hash to each individual member of the society having plot size of 500 square yards partly in monetary terms (Rs. 82.50 lacs in cash) and balance in terms of built up property (one flat measuring 2250 square feet). Clause 4 of the JDA provided the following schedule:- a) Payment of Rs. 3 lacs per plot holder of 500 square yards and Rs. 6 lacs per plot holder of 1000 square yards upon execution of the JDA as adjustable advance. b) Payment of Rs. 12 lacs per plot holder of 500 square yards and Rs. 24 lacs per plot holder of 1000 square yards to be made upon execution of the JDA against execution of a registered sale deed by the society in favour of THDC for land of equivalent value being 3.08 acres having specific Khasra nos. as mentioned in the JDA. c) Payment of Rs. 18 lacs per plot holder of 500 square yards and Rs. 36 lacs per plot holder of 1000 square yards to be made within two months of execution of the JDA against execution of another registered sale deed by the society in favour of THDC for land of equivalent value being 4.62 acres. d) Payment of Rs. 24.75 lacs per plot holder of 500 square yards and Rs. 49.50 lacs per plot holder of 1000 square yards to be made within six months from the date of execution of the JDA or within two months from the date of the approval of the plans/design and drawings and grant of final licence to develop whereupon construction can commence, whichever was later, against execution of another registered sale deed by the society in favour of THDC for land of equivalent value being 6.36 acres. e) Balance payment of Rs. 24.75 lacs per plot holder of 500 square yards and Rs. 49.50 lacs per plot holder of 1000 square yards to be made within two months from the date of payment as per clause (d) above, towards full and final settlement of payments after adjustment of the advance/earnest money against execution of another registered sale deed by the society in favour of THDC for land of equivalent value being 7.14 acres. f) Each member having plot of 500 square yards was entitled to receive one built up apartment having super area of 2250 square feet and each member having plot of 1000 square yards was entitled to two built up apartments having super area of 2250 square feet after transfer of land in the name of THDC. Allotment letters were to be issued by THDC within two months from the date of obtaining approval to commence construction at the site. Copies of the minutes of the Executive Committee of the society dated 4.1.2007 and JDA dated 25.2.2007 are attached as Annexures A.1 and A.2 respectively with the appeal. Clause 14 of the agreement further provided that in case of termination of the JDA, lands registered in the name of THDC upto the date of termination shall remain with THDC and the balance lands to be transferred shall not be transferred in favour of THDC.;